In re T.J. , 2016 Ohio 163 ( 2016 )

[Cite as In re T.J., 2016-Ohio-163.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
IN THE MATTER OF: :
:
T.J. : Case Nos. 15CA15
: 15CA16
:
ADJUDICATED : DECISION AND JUDGMENT ENTRY
DEPENDENT CHILD. :
: RELEASED: 1/13/2016
____________________________________________________________________
APPEARANCES:
Lee D. Koogler, Hillsboro, Ohio, for Appellant J.J.
Dennis Kirk, Hillsboro, Ohio, for Appellant A.G.
Anneka P. Collins, Highland County Prosecutor, and Molly Bolek, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for Appellee.
____________________________________________________________________
Harsha, J.
{¶1} T.J.’s biological parents separately appeal the trial court’s judgment
awarding Highland County Children Services (HCCS) permanent custody of their one
and one-half-year-old child. We sua sponte consolidated the appeals for purposes of
decision.
{¶2} Mother and father assert that the judgment awarding HCCS is against the
manifest weight of the evidence because the record fails to clearly and convincingly
show that awarding HCCS permanent custody would serve the child’s best interest.
Neither parent specifically argues that the evidence fails to support the trial court’s
findings regarding the R.C. 2151.414(D) best interest factors. Instead, the parents
contend that their alleged case plan compliance shows that reunification is in the child’s
best interest. However, a parent’s case plan compliance is relevant only to the extent
Highland App. Nos. 15CA15 and 15CA16 2
that it may affect a child’s best interest; i.e., a parent’s case plan compliance or desire
for reunification are not ipso facto the determinative factors when considering a child’s
best interest. Rather, R.C. 2151.414(D) states that a court that is considering a child’s
best interest must consider all relevant factors including, (1) the child’s interactions and
interrelationships, (2) the child’s wishes, as appropriate, (3) the child’s custodial history,
(4) whether the child needs a legally secure permanent placement and whether this
type of placement can be achieved without granting permanent custody to the children
services agency, and (5) whether R.C. 2151.414(E)(7) to (11) apply. Mother’s and
father’s arguments that they complied with the case plan and displayed a genuine
desire for reunification are relevant but not outcome determinative per se.
{¶3} Here, the record contains clear and convincing evidence to support the
trial court’s finding that granting HCCS permanent custody is in the child’s best interest.
Mother and father apparently interacted appropriately with the child. However, their lack
of commitment to visiting the child and choosing to move far away from the child
negatively affected their ability to form a strong relationship with the child. They did not
even visit the child for over seven months. Failing to visit a child for over seven months
is not a sign that a parent has the commitment necessary to care for a child. Nor does it
help establish a parent-child bond. The child was removed from the parents’ care at
birth and has lived in the same foster home throughout the proceedings. Neither parent
has shown a willingness to provide a legally secure permanent placement for the child
during those extended periods. Additionally, their failure to have any contact with the
child for over seven months constitutes abandonment under R.C. 2151.414(E)(10).
These factors clearly and convincingly support the trial court’s conclusion that awarding
Highland App. Nos. 15CA15 and 15CA16 3
HCCS permanent custody of T.J. is in his best interest. Accordingly, we overrule
mother’s and father’s assignments of error and affirm the trial court’s judgment.
I. FACTS
{¶4} In January of 2014, HCCS filed an abuse, neglect, and dependency
complaint naming T.J., who was one-day-old. The complaint asserted that mother’s
older child, S.M., was adjudicated dependent in 2012 and that HCCS has since
requested the court to grant it permanent custody of S.M. HCCS also sought and
obtained temporary emergency custody of T.J. In March of 2014, the trial court
adjudicated T.J. dependent and granted HCCS temporary custody.
{¶5} HCCS developed a case plan aimed at reunifying T.J. with his parents.
The case plan required mother (1) to complete a mental health assessment and follow
any treatment recommendations, (2) to take prescribed medications, (3) to obtain and
maintain stable, appropriate housing for at least six consecutive months, (4) to
demonstrate that she can provide for the child’s safety and stability on a consistent
basis, and (5) to comply with probation. The case plan required father (1) to obtain and
maintain stable employment for at least six consecutive months, (2) to comply with
probation, (3) to complete a substance abuse assessment and comply with any
treatment recommendations, and (4) to submit to random drug screens.
{¶6} In December of 2014, HCCS filed a motion to extend the temporary
custody order for an additional six months. HCCS asserted that the parents “have
made significant progress on their case plan,” but they have not successfully completed
all of the case plan objectives. HCCS stated that the parents have safe and stable
housing and that father is employed. However, he had not completed a substance
Highland App. Nos. 15CA15 and 15CA16 4
abuse treatment program, and mother had not engaged in mental health counseling.
Additionally, in July 2014, both parents had positive drug screens. HCCS thus
requested the court to extend the temporary custody order for an additional six months
in order to allow the parents additional time to fulfill the case plan goals.
{¶7} The court held a hearing in January of 2015 to consider HCCS’s motion to
extend the temporary custody order. Neither parent appeared.
Nonetheless, the court extended the temporary custody order. The court found that the
parents made “significant progress on their case plan services” and “that it is anticipated
that the child will be reunified with one or both parents within the period of the
extension.”
{¶8} On May 13, 2015, HCCS filed a motion to modify the disposition to
permanent custody. HCCS alleged that T.J. is abandoned, has been in its temporary
custody for twelve or more months of a consecutive twenty-two month period, and
cannot or should not be placed with either parent within a reasonable time. HCCS
alleged that neither mother nor father has had any contact with T.J. since December 15,
2014.
{¶9} At the hearing on HCCS’s permanent custody motion, HCCS visitation
monitor Deloris Colville testified that since January 13, 2014, HCCS offered the parents
fifty-five visits with the child, but mother attended only twenty-three visits and father
attended only twenty visits. Colville stated that neither parent has visited the child since
December 15, 2014. Colville indicated that when the parents did visit, they interacted
appropriately with the child.
Highland App. Nos. 15CA15 and 15CA16 5
{¶10} The child’s foster mother testified that her family shares a strong bond with
the child, who has lived in her home since he was one day old. She testified that the
child enjoys playing in the yard on the swings and slides and enjoys interacting with the
chickens the family keeps. She testified that she has two other children, ages 13 and 8,
and T.J. enjoys playing with her other children a great deal. All three children are very
bonded with each other, love and hug each other, and her eight-year-old refers to T.J.
as a sibling. She testified that T.J. is very bonded with her and her husband and looks
forward to seeing them when they arrive home from work. She stated that she and her
husband will adopt the child, if HCCS is awarded permanent custody of the child.
{¶11} HCCS caseworker Seth Queen testified that the child is bonded with the
foster family. He explained that the case plan required father to complete a substance
abuse assessment, to maintain employment, and to submit to random drug screens.
He stated that the case plan required mother to undergo a mental health assessment, to
obtain stable housing, and to take prescribed medication. Queen indicated that the
parents had complied with some aspects of the case plan, but they failed to visit the
child for over seven months. Queen spoke to the parents about their failure to visit the
child, and the parents stated that they did not have transportation.
{¶12} Holly Hamilton, a caseworker at HCCS, testified that the last contact she
had with the father and mother was in September 2014. She stated that she attempted
to meet with them at their residence a number of times each month, by telephone and
by personal visit, but no one would answer the phone or come to the door. Hamilton
testified that the couple did not notify the agency that they had left Hillsboro. Hamilton
Highland App. Nos. 15CA15 and 15CA16 6
testified that they contacted her in April 2015 to notify her that they were residing in
Richwood.
{¶13} The parents testified that they currently live in Richwood, Ohio, which is
located two and one-half hours away from Hillsboro. They claimed that transportation
difficulties prevented them from visiting the child for the seven-month period. While they
lived in Hillsboro they had visitation hours with their child for two hours per week at the
center and two hours per week at the mother’s residence supervised by the agency.
{¶14} The father testified that he was working in Hillsboro at a temporary job and
was laid off after two months. After he lost that job, he was unable to find steady work,
so at some point after their visit with T.J. in December 2014, he moved to South Shore,
Kentucky across the river from Portsmouth, Ohio to look for employment. He stated that
an uncle told him that he had work for him in Kentucky and his uncle drove up from
Kentucky to help him move. However, about a month later, his uncle passed away.
{¶15} The father testified that in February 2015 he moved from Kentucky to
Richwood, Ohio, north of Marysville. His mother, step-father, and step-sister live in
Richwood. He was able to get from Kentucky to Ohio because his aunt dropped him off
at Washington Court House and his mother picked him up and transported him to
Richwood. He searched for employment in Richwood for approximately two weeks and
was able to locate full time permanent custodial work at a Honda plant. He testified that
his step-sister also works the same shift at Honda and he rode with her to and from
work. The father testified that he has been working steadily at Honda since February
2015, moved into a two-bedroom condo several months later, and purchased a car a
few months prior to the hearing. He testified that he has a learner’s permit and is
Highland App. Nos. 15CA15 and 15CA16 7
working on obtaining his driver’s license. He also testified that he and the mother have a
new four-month-old baby that is living with them.
{¶16} He testified that he was unable to visit T.J. after the December 2014 visit
because he had no car or driver’s license and had full time employment. Although he
was able to have family members drive him on isolated instances from Ohio to Kentucky
and back during his search for work, neither his mother nor his step-sister could drive
him the two and one-half hour trip to Hillsboro to visit his child on a weekly basis, even if
he could arrange his work schedule around the agency’s visitation hours.
{¶17} He testified that he knew the move to Richwood would make visitation with
his child difficult, but he left Hillsboro, in part, because it had a bad influence on him and
he wanted a clean start. He testified that he has not used illegal drugs since he moved
away from Hillsboro and must undergo random drugs screening at Honda to maintain
his employment.
{¶18} The mother testified that she was employed in Hillsboro at the time she
last visited her child in December 2014, but quit employment to go with the child’s father
to Kentucky and on to Richwood. She testified that she has been unemployed
continuously since and does not have work as an excuse for her failure to visit her child.
Even though she is unemployed and available during the agency visitation hours, she
testified that because she now lives in Richwood, she has no transportation and could
not make arrangements with any adult to transport her to Hillsboro for a single visit
since December 2014. She testified that even though the child’s father’s mother and
step-father live close and are also unemployed, they were both too busy helping out the
step-sister and her family to drive mother to see her child during the past seven months.
Highland App. Nos. 15CA15 and 15CA16 8
{¶19} The trial court awarded HCCS permanent custody of the child. The court
found that the child has been in HCCS’s temporary custody since January 13, 2014,
and that neither parent has had any contact with the child since December 15, 2014.
The court thus found that R.C. 2151.414(B)(1)(b) and (d) applied: (1) the parents
abandoned their child; and (2) the child has been in HCCS’s temporary custody for
twelve or more months of a consecutive twenty-two month period.
{¶20} The court next determined that awarding HCCS permanent custody would
serve the child’s best interest. The court explained:
“The minor child and foster family are very bonded to each other. The
foster family will adopt the child if available.
Neither parent has elected to have any contact with their son since
December 15, 2014, which is 225 days as of the date of this hearing. The
parents elected to move approximately two hours from Hillsboro and contend
transportation issues and Agency unwillingness to set times convenient to them
for visits were their reason for not contacting their son for the past 225 days. The
Court is of the opinion the parents could and should have visited [the child] and is
not persuaded by their excuses. The Court also notes on April 29, 2014, the
mother was granted an additional two hours per week parenting time at her
residence supervised by the Agency but elected to move away from Hillsboro
and not take advantage of the extended visits at her Highland County home.
The Court does note that when the parents chose to visit prior to
December 15, 2014, the visits went well.
The child at age 18 months is not old enough to verbalize his wishes.
As to the custodial history of the child it is noted that [the child] has lived
with his foster family since he was one day old and has never resided with either
parent.
There are currently no acceptable relative placements and a permanent
placement for the child cannot be achieved without granting permanent custody
to the Agency.”
{¶21} The court additionally found that the parents abandoned their child and
that mother had her parental rights permanently terminated for a sibling of the child and
has not shown that she can provide a legally secure permanent placement and
adequate care for the child.
Highland App. Nos. 15CA15 and 15CA16 9
{¶22} The court recognized that both parents completed the majority of their
case plan objectives but determined that their compliance did “not override the complete
abandonment by both parents of their minor child.” The court found their claim of
transportation difficulties “disingenuous” because they were able to find transportation
when needed for other matters and could have remained living in Highland County,
which would have prevented their claimed transportation difficulties. The court found
that the parents’ actions demonstrated a lack of commitment to the child. The court
thus concluded that placing the child in HCCS’s permanent custody and permanently
terminating their parental rights would be in the child’s best interest.
II. ASSIGNMENT OF ERROR
{¶23} A.G. raises one assignment of error:
“The trial court erred in finding that permanent custody was in the best interests
of the child. The court’s best interest analysis was against the manifest weight of
the evidence.”
J.J. raises one assignment of error:
“The trial court’s grant of permanent custody to the agency was against the
manifest weight of the evidence, as clear and convincing evidence did not exist
to support the trial court’s finding that granting permanent custody to the agency
was in the best interest of the child.”
III. ANALYSIS
{¶24} In their sole assignments of error, mother and father assert that the trial
court’s decision to award HCCS permanent custody is against the manifest weight of
the evidence because the record fails to clearly and convincingly show that awarding
HCCS permanent custody is in the child’s best interest. Neither parent focuses upon
the best interest factors outlined in R.C. 2151.414(D). Instead, they argue that their
case plan compliance shows that reunification is in the child’s best interest. Mother
Highland App. Nos. 15CA15 and 15CA16 10
contends that she completed the major case plan objectives and displayed a
commitment to the child, but transportation difficulties and geographical distance
prevented her from visiting the child. Father argues that he “was making significant
strides toward achieving reunification” with the child by attempting to satisfy the
requirements of the case plan and that he shared a positive relationship with the child.
Father like mother, also asserts that he had transportation difficulties and attempted to
alleviate the problems so that he could visit the child more often. He claims that he
“plainly demonstrate[d]” that he “desired to someday regain custody of T.J.”
A. STANDARD OF REVIEW
{¶25} “A reviewing court generally will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the evidence.” In
re R.S., 4th Dist. Highland No. 13CA22, 2013–Ohio–5569, ¶29; accord In re J.V.-M.P.,
4th Dist. Washington No. 13CA37, 2014–Ohio–486, ¶11. To determine whether a
permanent custody decision is against the manifest weight of the evidence, an appellate
court must weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether in resolving evidentiary conflicts, the trial court
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed and a new trial ordered. R.S. at ¶30, citing Eastley v. Volkman, 132
Ohio St. 3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶20. In reviewing the evidence
under this standard, we must defer to the trial court’s credibility determinations because
of the presumption in favor of the finder of fact. Id. at ¶33, citing Eastley at ¶21.
Deferring to the trial court on matters of credibility is “crucial in a child custody case,
where there may be much evident in the parties’ demeanor and attitude that does not
Highland App. Nos. 15CA15 and 15CA16 11
translate to the record well.” Davis v. Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d
1159 (1997); accord In re Christian, 4th Dist. Athens No. 04CA10, 2004–Ohio–3146, ¶7.
As the Ohio Supreme Court explained long-ago: “In proceedings involving the custody
and welfare of children the power of the trial court to exercise discretion is peculiarly
important. The knowledge obtained through contact with and observation of the parties
and through independent investigation cannot be conveyed to a reviewing court by
printed record.” Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
Furthermore, unlike an ordinary civil proceeding in which a jury has no contact with the
parties before a trial, in a permanent custody case a trial court judge may have
significant contact with the parties before permanent custody is even requested. In re
R.S. at ¶34. In such a situation it is not unreasonable to presume that the trial court
judge had far more opportunities to evaluate the credibility, demeanor, attitude, etc., of
the parties than this court ever could from a mere reading of the permanent custody
hearing transcript. Id.
{¶26} In a permanent custody case, the dispositive issue on appeal is “whether
the juvenile court’s findings * * * were supported by clear and convincing evidence.” In
re K.H., 119 Ohio St. 3d 538, 2008–Ohio–4825, 895 N.E.2d 809, ¶ 43; accord R .C.
2151.414(B)(1). “Clear and convincing evidence” is “that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the extent of
such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St.469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus; State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio
Highland App. Nos. 15CA15 and 15CA16 12
St.3d 350, 2013–Ohio–3720, 995 N.E.2d 1175, ¶14. “[I]f the children services agency
presented competent and credible evidence upon which the trier of fact reasonably
could have formed a firm belief that permanent custody is warranted, then the court’s
decision is not against the manifest weight of the evidence.” In re R.M., --- Ohio App.3d
---, 2013–Ohio–3588, 997 N.E.2d 169, ¶55 (4th Dist.). The essential question we must
resolve when reviewing a permanent custody decision under the manifest weight of the
evidence standard is whether the amount of competent, credible evidence presented at
trial produced in the court’s mind a firm belief or conviction that permanent custody was
warranted. In re J.H., 4th Dist. Hocking No. 14CA4, 2014-Ohio-3108, ¶14.
B. PERMANENT CUSTODY PRINCIPLES
{¶27} A parent has a “fundamental liberty interest” in the care, custody, and
management of his or her child and an “essential” and “basic civil right” to raise his or
her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L.Ed .2d 599
(1982); In re Murray, 52 Ohio St. 3d 155, 156, 556 N.E.2d 1169 (1990); accord In re
D.A., 113 Ohio St. 3d 88, 2007–Ohio–1105, 862 N.E.2d 829. A parent’s rights, however,
are not absolute. D.A. at ¶11. Rather, “‘it is plain that the natural rights of a parent * * *
are always subject to the ultimate welfare of the child, which is the pole star or
controlling principle to be observed.’” In re Cunningham, 59 Ohio St. 2d 100, 106, 391
N.E.2d 1034 (1979), quoting In re R.J.C., 300 So. 2d 54, 58 (Fla.App.1974). Thus, the
state may terminate parental rights when a child’s best interest demands it. D.A . at
¶11.
C. PERMANENT CUSTODY FRAMEWORK
Highland App. Nos. 15CA15 and 15CA16 13
{¶28} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody of a
child to a children services agency if the court determines by clear and convincing
evidence that the child’s best interest would be served by the award of permanent
custody and that:
(a) The child is not abandoned or orphaned or has not been in the
temporary custody of one or more public children services agencies or private
child placing agencies for twelve or more months of a consecutive twenty-two
month period ending on or after March 18, 1999, and the child cannot be placed
with either of the child’s parents within a reasonable time or should not be placed
with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two month period ending on or after March 18,
1999.
(e) The child or another child in the custody of the parent or parents from
whose custody the child has been removed has been adjudicated an abused,
neglected, or dependent child on three separate occasions by any court in this
state or another state.
{¶29} Thus, before a trial court may award a children services agency
permanent custody it must find (1) that one of the circumstances described in R.C.
2151.414(B)(1) applies, and (2) that awarding the children services agency permanent
custody would further the child's best interest. Here, the court found that R.C.
2151.414(D)(1)(b) and (d) applied, and neither parent challenges these findings. Thus,
we do not address them.
D. BEST INTEREST
{¶30} “In a best-interests analysis under R.C. 2151.414(D), a court must
consider ‘all relevant factors,’ including five enumerated statutory factors * * *. No one
element is given greater weight or heightened significance.” In re C.F., 113 Ohio St.3d
Highland App. Nos. 15CA15 and 15CA16 14
73, 2007–Ohio–1104, 862 N.E.2d 816, ¶57, citing In re Schaefer, 111 Ohio St. 3d 498,
2006–Ohio–5513, 857 N.E.2d 532, ¶56. The five enumerated factors include: (1) the
child’s interaction and interrelationship with the child’s parents, siblings, relatives, foster
parents and out-of-home providers, and any other person who may significantly affect
the child; (2) the child’s wishes, as expressed directly by the child or through the child’s
guardian ad litem, with due regard for the child’s maturity; (3) the child’s custodial
history; (4) the child’s need for a legally secure permanent placement and whether that
type of placement can be achieved without a grant of permanent custody to the agency;
and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.
{¶31} The record contains clear and convincing evidence to support the trial
court’s best interest determination. Starting with respect to the child’s interactions and
interrelationships, the evidence shows that the child shares a strong bond with the
foster family. Although the parents may have had appropriate interactions with the child
when they visited, they failed to visit the child for over seven months, which obviously
negatively impacted any ability to forge a strong parent-child bond with their young
child. The parents’ failure to visit does not demonstrate a willingness to maintain the
continuous relationship and interaction necessary in any parent-child relationship. Even
if their lack of visiting with the child resulted from transportation difficulties, the trial court
noted that they apparently had no issue arranging transportation in order to meet other
needs. The court thus could justifiably discredit the parents’ claimed transportation
difficulties. Moreover, as the trial court noted, the parents chose to move two and one-
half hours away from the child. Knowing this would limit their ability to visit him. Their
decision to move two and one-half hours away does not evince a firm commitment to
Highland App. Nos. 15CA15 and 15CA16 15
the child. Instead, their decision to move shows that they placed other interests above
their child’s.
{¶32} Regarding the child’s wishes, the court noted that the child is too young to
express them. However, the court observed that the guardian ad litem recommended
that the court award HCCS permanent custody of the child.
{¶33} Turning next to the child’s custodial history, the evidence shows that the
child has continuously lived in the same foster home since he was one day old.
{¶34} The evidence further demonstrates that the child needs a legally secure
permanent placement that cannot be achieved without granting HCCS permanent
custody. HCCS found no suitable relative placements. Even if the parents presently
live in a suitable residence, their lack of commitment to the child, i.e., their failure to visit
with the child for over seven months, shows that they are unwilling to provide the child
with a legally secure permanent home.
{¶35} Additionally, their failure to have any contact with the child for over seven
months constitutes abandonment under R.C. 2151.414(E)(10). See R.C. 2151.011(C),
which states that presumption of abandonment arises if parent fails to visit or maintain
contact with child for more than ninety days.
{¶36} Moreover, most of the parents’ arguments focus not upon the child’s best
interest, but instead, upon their alleged case plan compliance. They assert that they
complied with most aspects of the case plan and, therefore, that reunification is in the
child’s best interest. However, once the court finds the existence of one of the R.C.
2151.414(B)(1) factors, the child’s best interest controls. D.A., supra, 2007–Ohio–1105,
¶11 (“Once the case reaches the disposition phase, the best interest of the child
Highland App. Nos. 15CA15 and 15CA16 16
controls.”); In re K.J., 4th Dist. Athens No. 08CA14, 2008-Ohio-5227, ¶24 (stating that
“when considering a R.C. 2151.414(D)(1)(d) permanent custody motion, the focus is
upon the child's best interests, not upon the parent's compliance with the case plan”). A
parent’s case plan compliance may be relevant to the extent that it affects the child’s
best interest. In re R.L., 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-3117, ¶34
(stating that “although case plan compliance may be relevant to a trial court's best
interest determination, it is not dispositive of it”). However, simply because a parent
may have complied with a case plan does not preclude a trial court from awarding
permanent custody to a children services agency when doing so is in the child’s best
interest. In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶35 (stating that
“substantial compliance with a case plan, in and of itself, does not establish that a grant
of permanent custody to an agency is erroneous”); In re S.C., 8th Dist. Cuyahoga No.
102349, 2015-Ohio-2280, ¶40 (“Compliance with a case plan is not, in and of itself,
dispositive of the issue of reunification.”); In re W.C.J., 4th Dist. Jackson No. 14CA3,
2014-Ohio-5841, ¶46 (“Substantial compliance with a case plan is not necessarily
dispositive on the issue of reunification and does not preclude a grant of permanent
custody to a children’s services agency.”).
{¶37} And, as this court frequently recognizes:
“‘“ * * * [A] child should not have to endure the inevitable to its great detriment
and harm in order to give the * * * [parent] an opportunity to prove her suitability.
To anticipate the future, however, is at most, a difficult basis for a judicial
determination. The child’s present condition and environment is the subject for
decision not the expected or anticipated behavior of unsuitability or unfitness of
the * * * [parent]. * * * The law does not require the court to experiment with the
child’s welfare to see if he will suffer great detriment or harm.”’”
Highland App. Nos. 15CA15 and 15CA16 17
W.C.J. at ¶48, quoting In re Bishop, 36 Ohio App. 3d 123, 126, 521 N.E.2d 838 (5th
Dist.1987), quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343, 346 (1972).
{¶38} Here, the trial court could have determined that it would no longer
experiment with T.J.’s welfare in order to provide the parents with even more time to
show that they are willing to provide the child with a legally secure permanent
placement. They had over a year and one-half to show that they would do so, yet after
HCCS had requested the court to extend the temporary custody order for six months in
order to allow the parents to complete the case plan objectives, the parents failed to
have any contact with the child for over seven months. Clearly, this behavior does not
demonstrate a firm commitment to the child or help establish a strong parent-child bond.
Furthermore, it does not suggest that either parent holds the commitment necessary to
properly care for the child. Instead of choosing to remain in a location where they could
readily visit the child, they chose to move two and one-half hours away, despite knowing
that obtaining transportation to visits with the child could prove problematic. Although
we commend A.G. and J.J. for apparently attempting to improve their own lives, they
chose to do so without regard for the impact on T.J.
IV. CONCLUSION
{¶39} Clear and convincing evidence supports the trial court’s finding that
awarding HCCS is in the child’s best interest. Thus, its decision granting HCCS
permanent custody and terminating A.G.’s and J.J.’s parental rights is not against the
manifest weight of the evidence. Accordingly, we overrule A.G.’s and J.J.’s
assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Highland App. Nos. 15CA15 and 15CA16 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.